Head of Visa Control Predicts EB-5 Visa Retrogression in 2015. By Lauren A. Cohen

According to recent announcements by Charles Oppenheim, the Chief of the Visa Control and Reporting Division of the U.S. Department of State, a retrogression of the EB-5 immigrant visa category will likely take place during the U.S. government’s 2014-2015 fiscal year. The State Departments’ fiscal year just began on October 1st and ends on September 30th.

The precise timing of when this retrogression will take place remains unclear. In his mid-October 2014 update to the AILA (American Immigration Lawyers Association), Charles Oppenheim, predicted that the EB-5 immigrant visa category would retrogress in May 2015. Later that same month, at the IIUSA (Association to Invest in the USA) Conference, he reported that the retrogression would probably occur in July 2015[1].

According to Oppenheim, whether it takes place in May or July, the EB-5 Visa regression will likely have a cut-off date of July 2013. Since visas are issued on a “first come, first served” basis, this means that during the month of July 2015 (or whenever the retrogression takes place), only those EB-5 investors and their derivative beneficiaries with a Priority Date in July 2013 or earlier may apply for an EB-5 immigrant visa. The “Priority Date” is defined as the date an I-526 Petition was filed.[2]

According to the National Law Review, “Oppenheim attributed the establishment of a July 2013 cut-off date to the increasing volume of I-526 Petition approvals by the U.S. Citizenship & Immigration Services (the USCIS) and his estimation of approximately three derivatives per I-526 Petition.” Currently, the US government limits the total number EB-5 immigrant visas to 10,000 per fiscal year, which includes both investors and their derivative beneficiaries.[3]

Despite this announcement, EB-5 investors should continue to file I-526 Petitions as needed for business purposed. Retrogression will have no effect on the adjudication of I-526 Petitions by the USCIS. It is thus important for an investor to secure their spot in the EB-5 immigrant visa queue by filing their petitions as soon as possible.[4]

As previously reported on our blog, the demand for EB-5 visas for Chinese investor immigrants exceeded the number of visas available to them in the 2013-2014 fiscal year. This resulted in a Chinese EB-5 visa retrogression, which was announced on August 23, 2014 by the U.S. Department of State.[5] Fortunately, since visa quotas are reset at the beginning of each fiscal year, which began on October 1st, Chinese nationals are again eligible to receive visas. Notably, this was the first time in the program's history that a per-country quota had been met.[6]

The impact of an upcoming retrogression on the economy remains to be seen. For investors, retrogression means greater uncertainty and future delays in visa processing. Consequently, retrogression of the EB-5 immigrant visa category may cause a drop in demand for the EB-5 immigrant visa, leading to lower foreign investment in the United States. Comprehensive Immigration Reform, if and when it occurs, may have the advantage of making such retrogressions less likely, since proposed reforms have included an increase in the US government’s visa quotas.
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